This entry was posted on 8/8/2009 9:00 AM and is filed under Guardala News, news.
It appears Dave Guardala is not happy with getting caught stealing millions of dollars and is found expressing himself, thru his attorney. I find it amazing that people scream for their rights in the mist of abusing so many others!
I believe these are public records so it should be OK to post them. I was told 9/11 was the new sentencing date and this is the first I have seen from the new attorney with any suggestion as to how they might get Dave off with time served and not even obligated 'on paper' to pay anybody back.
This says it all.
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------------- UNITED STATES OF AMERICA V OBJECTIONS TO PRE-SENTENCE REPORT Cr 07-684 (TCP) DAVID GUARDALA --------------------------------------------- Although the sentencing guidelines are no longer mandatory the Court is required to consider them when determining the appropriate sentence to impose on this defendant. The following items are relevant to this determination:
1. The pre-sentence report lists the defendant’s date of arrest as January 11, 2008. The correct date is August 16, 2007 when he was arrested in Germany. The sentence imposed should insure that defendant receive credit for the period of time when he was locked up in Germany awaiting transfer to the United States for the purpose of being prosecuted on the present case.
2. A downward departure is permitted pursuant to sentencing guideline 5K2. based on pre-trial incarceration where there has been lengthy incarceration at substandard conditions. United States v Carty, 264 F 3rd 191, United States v Francis, 129 F Supp. 2d 612; United States v Guglielmo 07 Cr 2368. Case 2:07-cr-00684-TCP-ARL Document 39 Filed 08/07/09 Page 1 of 9
3. Since the time of his arrest the defendant has been incarcerated at three different correctional facilities each of which involved some form of substandard conditions.
4. Although he did not oppose extradition to the United States defendant remained incarcerated in Weiterstadt prison in Germany from August 16, 2007 until January 11, 2008. On the positive side the German prison at Weiterstadt was spotless. On the negative side defendant received just one tray of food per day and this was at 11:15 am. He was also subjected to compulsory work in a factory five days a week, and was locked in from 4:30 p.m. to 6:30 a.m. On weekends he would be locked in from 3 pm to 8:15 the next morning. While at this facility he was subjected to an anti- American attitude which frequently took the form of verbal abuse and sometimes the guards took it one step further by “forgetting” to open his door when he was supposed to have his one hour of recreation time.
5. Once he arrived in the United States defendant was placed in the Queens private jail where he remained from January 11th, until March 3rd, 2008. While there he was threatened by other inmates and his food was stolen. Security was lax and the staff would not interfere when there were fights. Case 2:07-cr-00684-TCP-ARL Document 39 Filed 08/07/09 Page 2 of 9
6.On March 3rd 2008 defendant was transferred to the Nassau County Correctional facility where he has remained to the current time. Upon information and belief a number of United States District Court Judges including Judges Spatt, Platt and Wexler have previously granted downward departures based on the unsatisfactory conditions that prevail at this facility.
7. According to the defendant the current problems at this facility are numerous and include each of the following:
A. bed bug infestation. Skin rashes and related ailments are routine and hydrocortisone cream is dispensed on a daily basis. When defendant complained to the authorities he was told he was probably having a reaction to the laundry detergent. However his “reaction” stopped only after he was given a new mattress.
B. rodent infestation. Each night the defendant stacks up books at the bottom of the bars to his cell to try and prevent the bugs from taking over his cell.
C. Unhealthy food. Defendant frequently has headaches which he attributes in part to the high sodium content in the food that is being dispensed. In addition the quantities dispensed are inadequate and it not uncommon to find rodent feces and vermin on the food trays. As evidenced by greasy film and contents left over from prior meals the food trays are not being properly cleaned and sanitized. Case 2:07-cr-00684-TCP-ARL Document 39 Filed 08/07/09 Page 3 of 9
D. Exposure to Disease. While at this facility defendant has been exposed to various infectious and communicable diseases For example he believes that there are currently has at least 3 inmates in his housing unit with hepatitis C. In his prior unit every inmate was exposed to this disease because the inmate handling the food cart had hepatitis “C”. Inmates at this facility are exposed to a variety of diseases including HIV/Aids, MRSA (methicillin resistant staphylococcus aureus), Herpes, Venereal diseases and fungal and bacterial ailments.
E. Gang rivalries and violence at the facility continues on a daily basis. As a non-member of any of these gangs he has been subjected to extortion and threats of violence. Fortunately his ability to read and understand English enables him to assist other inmates with their cases and in return this gives him some degree of protection.
F. Unsanitary Conditions. There is very limited hot water for showers, the ceiling leaks and mold and mildew is rampant. This includes black mold on the air intake and exhaust ducts in each cell. Sometimes when a toilet is flushed there is a backflow of feces into his toilet. ( Counsel has previously been told about this by other inmates at this facility) The backflow of raw sewage into his toilet is most common during the night. To minimize this defendant flushes his toilet periodically. Of particular concern the razors used for shaving are Case 2:07-cr-00684-TCP-ARL Document 39 Filed 08/07/09 Page 4 of 9 being re-used without proper sanitary precautions being taken. Defendant became aware of this when he recently received a razor which was not particularly sharp and when he took a close look he observed blood and hair on the razor. When he commented on this the inmate behind him also noticed hair on the razor given to him. By reusing razors without taking the necessary precautions the facility is risking the spread of various diseases including hepatitis “C”.
G. Delayed Healthcare. Defendant claims that it takes 4 to 5 days after filling out a request for sick call to be brought to see any medical staff. To see a dentist or specialist takes longer. A routine matter such as getting Motrin for a headache or backache can take a week. In 1999 the Department Of Justice investigated conditions at this facility including the claim that inmates were being physically abused and that the facility was deliberately indifferent to the serious medical needs of inmates and after findings were made by the Department Of Justice the jail entered into a settlement agreement. Paragraph 27 of that agreement requires that all sick call requests are evaluated by clinical staff within 24 hours and that these requests be logged in showing the date of the request and the date the inmate was seen. If the spirit of this agreement was being adhered to then there should be no reason why it takes a week to be treated for a headache. Case 2:07-cr-00684-TCP-ARL Document 39 Filed 08/07/09 Page 5 of 9
H. Other problems at this facility include lack of adequate time in the law library (one hour per week), constant banging of steel gates causing ringing in defendant’s ears, lack of proper bedding resulting in constant back pain and lack of sleep,etc. While counsel would not suggest that inmates are entitled to luxury housing there are certain minimal standards of care which should be met including those set forth in the settlement agreement referred to above. Certainly it is inhumane to have to wait a week to be treated for a headache and there is no excuse for not taking all reasonable steps to maintain proper sanitation and prevent the spread of disease.
In determining the appropriate sentence the Court should consider the conditions to which this defendant has been exposed to at each of the above-mentioned facilities.
7. Inapplicability of 2B1.1(9) Although the federal sentencing guidelines are only advisory the Probation Department has once again listed every possible sentencing enhancement. In this case that includes Guideline 2B1.1(9)( . At first glance this enhancement seems applicable because defendant was in Germany at the time these crimes were committed. However, counsel would suggest that Americans Case 2:07-cr-00684-TCP-ARL Document 39 Filed 08/07/09 Page 6 of 9 convicted of crimes in foreign countries should not be punished more harshly because they are not citizens of that country. Similarly this enhancement (and similar enhancements subsequently enacted) is not intended to simply punish criminals living outside the United States more harshly than domestic criminals. Harsher punishment was intended for situations where geographical location was being used to hide the identity of the perpetrators. For example in many instances foreigners have used the e-mails to induce Americans to send them money. The people sending these e-mails use fictitious names and often represent themselves as barristers, or government officials. For example in United States v Okehi, 2003 U.S. Dist. LEXIS 17950 a person using the name Dr. Usman Bello claimed to be a member of the federal ministry of finance of the republic of Nigeria. In that instance his geographical location was being used to hide his true identity thus making prosecution more difficult than it would have otherwise been. The present case presents the opposite situation. Before moving to Germany David Guardala was a well known and highly respected individual within the music industry. Even today the quality of his products is lauded on the internet. As indicated in the pre-sentence report he left this Country for reasons that had nothing to do with the commission of any crimes. When David Guardala committed the crimes that are the subject of this indictment he continued to use his Case 2:07-cr-00684-TCP-ARL Document 39 Filed 08/07/09 Page 7 of 9 own name and with limited exception dealt with individuals who knew exactly who they were dealing with. It is therefore respectfully submitted that the fact pattern of the present case is outside the heartland of the situations for which 2B1.1(9)( is intended and that the Court should use its discretion and sentence defendant without applying this enhancement.
8. Restitution. – With regard to making restitution the Court should be aware that the ability of this defendant to earn living has until now been contingent on the excellent reputation that he earned in the music industry as a result of the innovations that he created. His good name was his financial ticket. As a result of the activities to which he has now pleaded guilty that good name is now gone and his ability to earn a living in the music industry or any related field has been nullified completely. It is respectfully submitted that the Court should consider the earning capacity of the defendant when considering the amount and terms of restitution.
9. Imposition Of Fine.- As indicated above defendant’s earnin capacity is substantially diminished from what it once was. The defendant is currently without funds with which to pay a fine.
10. Supervised release – Upon completion of his incarceration the defendant will attempt to secure employment that will enable him to exist and to meet the financial conditions that the Court may impose Case 2:07-cr-00684-TCP-ARL Document 39 Filed 08/07/09 Page 8 of 9 on him. Based on his recent notoriety defendant would respectfully request that he be permitted to travel outside the United States during that time period because he believes his best chance to succeed financially would be outside this country and it should be noted that in the past the defendant has operated a factory in Germany.
Respectfully submitted by Martin G Goldberg Attorney for David Guardala 672 Dogwood Avenue # 183 Franklin Square, N.Y. 11010 Dated: August 7, 2009 Cc: Probation Dept. Case 2:07-cr-00684-TCP-ARL Document 39 Filed 08/07/09 Page 9 of 9
RECAP - 1. Dave Guardala has been abused after stealing from everyone he knew. 2. He destroyed his good name in the music industry so can not pay anybody anything. 3. He is making a great case for TIME SERVED - SEE YA!
You think Dave Guardala should have thought about the possibilities of incarceration and that it might include a few of his rights finding little support. For instance - the right to be free!
I am glad to see an educated legal type actually able to argue that Dave was stupid so he should not be in trouble. Pretty amazing. This email came sent under the SUBJECT : POOR DAVE GUARDALA
As I continue to pay for the losses from Dave Guardala Ripping ME OFF; all I can say is - 5 more months on the personal loan, and I was up at 5 am at a car show - still trying to sell my classic 62 Impala to pay my Mother back; because good people don't rip family and friends off!! So sorry you are not comfortable! I got 3 hours of sleep last night again - thanks to my friend Dave Guardala - who willingly and with great joy STOLE 20K from me.
Not bitter - but bothered by this silly argument.
Think before you steal!
Don't complain about the consequences for too long, because no one really cares!
Screw everybody you know and every family member that you can! What are you left with??
